CALIFORNIA HIGH COURT’S GREENHOUSE GAS RULING

Law 360 discusses with Gregory Weiler of Palmieri Tyler, the California Supreme Court’s decision Monday, November 30, 2015, to further stall a multifamily project north of Los Angeles in part based on concerns about greenhouse gas impacts could have wide-ranging implications for development throughout the Golden State.

In ruling to halt the Newhall Ranch development, a project that has been in the works now for more than a decade, the court in Center for Biological Diversity v. California Department of Fish and Wildlife ruled that certain aspects of the department’s environmental impact report associated with the project were inadequate.

Among the issues the decision raised were whether project opponents will use greenhouse gases as another tool for litigation, what exactly developers need to do to satisfy the greenhouse gas question, and whether the Legislature may need to step in.

Overturning an appellate ruling, the high court said the environmental impact report in connection with the Newhall Ranch development had not provided sufficient analysis as to the question of greenhouse gas emissions.

In short, lawyers say the justices’ decision was unclear as to how exactly a project can satisfy California’s 2006 Global Warming Solutions Act of 2006, or A.B. 32, often called the “significance standard” that projects have to meet. Newhall Ranch’s environmental impact report claimed that the project’s 31 percent reduction of greenhouse gases below “business as usual” satisfied A.B. 32’s overall goal of a 29 percent reduction below that mark statewide. But the high court disagreed.

“The takeaway: great uncertainty [by developers] whether an environmental document satisfies the significance standard for greenhouse gas emissions,” said Gregory N. Weiler. 

“The Supreme Court spent pages speculating on how an environmental impact report might satisfy the analytical requirements it found necessary, but the court itself could only suggest an ad hoc, case-by-case approach,” he said. “Welcome to the science of climate change.”

Newhall Ranch has been in the works for 15 years, and although it’s common for projects to be stalled by California Environmental Quality Act litigation, rarely has the question of greenhouse gases been so central to such a large project. The massive project on nearly 12,000 acres calls for 20,855 homes as well as various parks and retail.

Without adequate guidance from the high court, developers face a big unknown when trying to determine whether their project will gain approval.